Market Mad House

In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. Friedrich Nietzsche

Historical Insanity

The US Supreme Court’s Legitimacy Crisis

The United States Supreme Court is facing a legitimacy crisis. A legitimacy crisis occurs when people refuse to accept an institution’s authority.

Legitimacy crises begin when an institution loses its moral authority. A legitimacy crisis could be fatal for the Supreme Court because moral authority is the only power that body has.

To explain, the Supreme Court has no military forces under its command, as the president does. Moreover, the Supreme Court cannot appropriate money as Congress can.

The present legitimacy crisis facing the Supreme Court has three causes. First a President; Donald J. Florida Sr. (R-Florida), who did not win a popular majority could appoint first, two and possibly three U.S. Supreme Court Justices.

To explain, Trump met the constitutional requirements for the presidential election winner. He won a 304 to 227 majority in the Electoral College. However, Hillary R. Clinton (D-New York) won the popular vote by a margin of 65.845 million to 62.980 million.

The Supreme Court Does not represent America

Second, Republicans are openly packing the courts with jurists with a narrow ideological world view.

That world view is an odd mixture of pro Big Business neoliberalism and extreme cultural conservatism. For instance, Trump’s judicial appointees oppose all abortion rights and want unrestrained capitalism. That puts those “jurists” at odds with the American people.

These views are at odds with majority opinion in the United States. Gallup estimates that 80% of Americans supported some form of legalized abortion in May 2020. Moreover, YougGov estimated 51% of Americans and 59% of Millennials (Americans between 24 and 39) had a positive opinion of US Senator Bernie Sanders (I-Vermont). To explain, Sanders describes himself a “democratic socialist.”

 Third, the present US Supreme Court represents a small elite rather than ordinary Americans. For instance, in 2018, the Washington Post; an elite newspaper complained “Every current Supreme Court justice attended Harvard or Yale.” There are hundreds of colleges and dozens of law schools in American but they recruit Supreme Court justices from a handful of elite institutions.

America’s Unrepresentative Supreme Court

To be fair, Trump’s latest Supreme Court nominee; Amy Coney Barrett is a Notre Dame graduate. However, Barrett is a Roman Catholic, which raises other questions.

The Associated Press (AP) claims six of the nine US Supreme Court justices will be Catholics if the US Senate approves Barrett’s nomination. The AP claims only 20% of the US population are Catholics.

The Pew Research Center estimates the largest religious group in America is “Evangelical Protestants” with 25.4% of the population. Yet there are no Evangelicals on the US Supreme Court.

Instead, the current court contains five Roman Catholics, two Jews (Elena Kagan and Stephen Breyer), and one Episcopalian (Gorsuch). Quartz estimates Episcopalians and Anglicans made up 1.3% of America’s population in 2018. Pew Estimates Jews made up 1.9% of the US population in 2020.

Moreover, I estimate that 45.7% of Americans say they have no religion. To explain, Pew classifies 22.8% of Americans as unaffiliated religiously, 3.1% of Americans as atheists, 4% as agnostics, and 15.8% of Americans as “nothing in particular.”

Yet there are no Evangelicals or secularists on the Supreme Court. Therefore, you can allege the Supreme Court’s religious views differ from those of 71.1% Americans. That sounds unfair, undemocratic, and illegitimate to me.

America’s Elitist Supreme Court

Thus the Supreme Court’s religion, philosophy, economics, and politics are not those of ordinary Americans. Many people think the court’s current elitist disposition is deliberate

Many critics claim the Federalist Society; packs courts with conservative pro-business candidates. The Supreme Courts blog alleges a majority of people on the Arizona, Florida, Georgia, Indiana, Ohio, Tennessee, Texas, and Wisconsin state supreme courts are Federalist Society members.

In fact, Trump promised to appoint only Federalist society picks to the US Supreme Court in his 2016 presidential campaign. Pittsburgh Current columnist Larry J. Schweiger alleges Federalist Society members fill 24% of federal judicial positions.  Schweiger also claims two U.S. Supreme Court members Neil Gorsuch and Brett Kavanaugh are Federalist Society members.

Cynics, including me, allege the Supreme Court’s elitist disposition leads to decisions that benefit the elites. For instance, critics allege Citizens United allows unlimited spending of dark money by wealthy people and corporations on political campaigns and causes.

Notably, Citizens United allows unlimited secret cash donations to nonprofit institutions, including the Federalist Society. Thus, the Federalist Society staffers have a strong economic interest in keeping Citizens United on the books.

Critics claim another decision: Shelby County v. Holdermakes it easy for wealthy white politicians to suppress the votes of people of color and the working class. Finally, the US Supreme Court extended marriage rights to same-sex couples, an elite issue, in Obergefell v. Hodges. However, in June 2020; six years after Obergefell, Gallup estimated 33% of Americans opposed same-sex marriage rights.

The Crisis of Legitimacy at the US Supreme Court

The elite composition and ideological bias is driving the Supreme Court’s current legitimacy crisis. The current crisis frightens me because America’s legitimacy crises have led to political conflicts and undermined the Constitution.

“Ultimately, it’s when justices think about legitimacy that they act most illegitimately,” the Cato Institute’s Ilya Shapiro writes about the US Supreme Court. Shapiro fears the court will make poor decisions to pander to popular opinion.

For instance, the Supreme Court upheld some of President Franklin D. Roosevelt’s (D-New York) blatantly unconstitutional World War II actions against Japanese Americans in Korematsu v. U.S.To elaborate, Shapiro thinks the Supreme Court justices were so afraid of a backlash after Pearl Harbor they handed down an unconstitutional decision in Korematsu.

The 1944 Korematsu decision came seven years after one of three Supreme Court Legitimacy Crises in American history; the “Court Packing” controversy of 1937. I will describe that crisis below.

Legitimacy Crises at the US Supreme Court

The other two Supreme Court Legitimacy Crises in American history were the Cherokee Cases in the 1830s and the Dred Scott Decision that led to the Civil War.

The Cherokee Cases arose from President Andrew Jackson’s (D-Tennessee) ethnic cleaning efforts. Jackson believed he had the legal power to force Native Americans off their lands. To elaborate, Jackson claimed Native Americans had no Constitutional rights because they were not white.

Hence, Jackson ordered the US Army to force the Cherokee and other indigenous people from their lands. Jackson’s real motivation was not racism, however. The President was trying to reward his supporters by allowing them to seize and sell the Native Americans’ property to slave owners. Instead, racism covered Jackson’s economic agenda of expanding slavery.

A majority of the US Supreme Court rejected Jackson’s evil doctrine in Cherokee Nation v. Georgia and upheld Native Americans’ rights. Jackson nullified that decision by ignoring the Supreme Court’s ruling and continuing his horrific policies. That led to the atrocity known as the Trail of Tears.

In the Cherokee Cases, Jackson showed the US Supreme Court to be a paper tiger with no power. In fact, Jackson almost destroyed the Supreme Court in the Cherokee Cases.

 The Supreme Court only survived because Jackson and his successors could pack the high court with their ideological puppets. In particular, Jackson appointed Slave-Power yes man and White Supremacist fanatic Roger B. Taney Chief Justice.

The Legitimacy Crisis that Led to Civil War

Taney sparked the next legitimacy crisis and helped start with the Civil War with his destructive Dred Scott Decision.

In Dred Scott, Taney ruled that African Americans had no Constitutional rights. Hence, Taney wrote Jackson’s notions of white supremacy into US law. In addition, Taney overturned long-standing federal law with his decision.

In Dred Scott v. Sanford, lawyers claimed Scott; a slave was free, because of the Northwest Ordinance. The Northwest Ordinance, ironically written by slave owner Thomas Jefferson, banned slavery from all the US territories north of the Ohio River.

In Dred Scott, the US Supreme Court overturned the Northwest Ordinance in a seven to two ruling. In addition, critics believed Taney wrote a “right to own slaves” into the Constitution with his opinion. Taken to its logical conclusion, Dred Scott could overturn state bans on slavery.

Critics of the Dred Scott; such as Abraham Lincoln (R-Illinois), charged that Taney and other justices were part of a conspiracy to extend slavery to all corners of the United States. Hence, Lincoln was alleging the Supreme Court was illegitimate because he believed the Slave Power controlled it.

One result of the Dred Scott Decision was unprecedented electoral success for the radical antislavery Republican Party. By 1860 the Republicans would control both Houses of Congress and the White House.  

Another outcome of Dred Scott was to inspire violence by radical abolitionists. The Supreme Court announced Dred Scott early in 1857. By 1859, abolitionist fanatic John Brown had gathered enough money and followers to launch his private war on slavery by seizing a federal arsenal at Harper’s Ferry.

Republican control of the federal government scared Southerners into leaving the Union and forming the Confederacy. Thus, Dred Scott was a cause of the Civil War.

The Supreme Court announced the Scott Decision early in 1857. Confederate artillerymen fired the first shots of the Civil War just four years later in April 1861.

Ultimately, the Civil War resolved the Dred Scott legitimacy crisis by destroying slavery. The Scott decision inspired the 13th and 14th Amendments to the US Constitution. The 14th Amendment grants citizenship to everybody born in the United States regardless of race.

Court Packing and the New Deal

Perhaps the Third Supreme Legitimacy Crisis, FDR’s 1937 “Court-Packing Scheme” was not a true legitimacy crisis.

Instead, President Franklin D. Roosevelt (D-New York) used the threat of a legitimacy crisis to force his will on the Supreme Court.  The battle began when FDR’s Congressional allies introduced the Judicial Procedures Reform Bill of 1937.

The Bill would allow to FDR appoint one new Justice to the Supreme Court for each justice over 70. Note: the Constitution gives a president the power to nominate as many Supreme Court justices as he or she wants. Hence, it is unclear what the Bill’s true purpose was.

FDR became upset because the Supreme Court had declared some high-profile New Deal programs, including the controversial National Recovery Administration (NRA) unconstitutional. Unlike Jackson, FDR could not ignore the Supreme Court he had to obey it.

Instead, FDR was sending the Supreme Court a message by saying he could appoint more justices. Court packing backfired because most members of Congress, the press, and the public opposed it. Even FDR’s own Vice President John Nance Garner (D-Texas) was an outspoken opponent of Court Packing.

Faced with popular opposition FDR eventually backed down but so did the Supreme Court. Court packing died as Justice Owen Roberts switched his vote and began supporting some New Deal measures, allowing those laws to survive. Roberts’ change of heart left the New Deal intact

In the next few years, FDR packed the Supreme Court the old-fashioned way by replacing dying and retiring justices. By 1943, civil libertarians were complaining of a packed Supreme Court that did whatever FDR wanted.

Some observers including Cato Institute’s Ilya Shapiro believe fear of FDR’s court packing drove the Supreme Court’s timidity in the Japanese American internment cases during World War II. Shapiro thinks the justices approved FDR’s internment scheme to stop the president from reviving Court Packing.

FDR’s 1937 failure has made Court Packing political poison ever since. However, many leftists are openly pondering adding Supreme Court justices to counter Trump and the Federalist Society’s court-packing efforts.

What we can learn from Past Supreme Court Legitimacy Crises

The first Supreme Court Legitimacy Crisis was a battle between an unpopular elitist Supreme Court and a popular populist president. However, the president’s program of Native American removal was utterly evil.

Given the composition of today’s Supreme Court, I think we could see an all-out war between the Supremes and a popular president. The current court and our populist president are nominal political allies.

However, we could see an all-out war between the present super conservative court and a left-wing populist president. Such a battle could break out if Bernie Sanders 2.0 wins the 2024 presidential election.

To elaborate a Sanders 2.0 will be a leftist will promote many programs a conservative Supreme Court can strike down. Those programs could include basic income, wealth taxes, a value-added tax (VAT), Medicare for All, and a jobs-guarantee for instance.

Given our elite’s refusal to address the economic problems of ordinary Americans, I think Bernie Sanders 2.0 is inevitable. An obvious candidate for the role of Bernie Sanders 2.0 is Andrew Yang (D-New York).

My great fear, however, is the developing crisis of legitimacy arising from decisions such as Citizens United and Shelby County. In those cases, the Supreme Court struck down longstanding federal laws and wiped out widely accepted precedents. Moreover, in both those cases the Supreme Court changed the political system dramatically.

Those cases fuel growing frustration with the Supreme Court and doubts about its legitimacy and intentions. Similarly, I think anger about Citizens United and Shelby County propels the current court packing movement.

Frighteningly, I think the frustration with the current court resembles the anger at the Supreme Court after Dred Scott. In both cases, the Supreme Court made questionable and disruptive decisions that benefit small and wealthy elite at the expensive of ordinary people.

Dred Scott benefited slave owners at the expense of ordinary Americans. Shelby County and Citizens United benefit big business and billionaires at the expense of ordinary Americans.

Similarly, Shelby County is rooted in racism (hostility to African-American voters) as Dred Scott was. In both cases, elitists use racism to make decisions that strip ordinary people of political power palatable to middle and working-class whites.

Shelby County has not generated the level of anger Dred Scott did, but it could. All it will take is one questionable vote such as the reelection of Donald J. Trump (R-Florida) without a popular majority to provoke a widespread popular reaction against Shelby County and its beneficiaries.

The Legitimacy Crisis that could destroy the Courts and Constitution

 I think the inevitable result of Shelby County and Citizens United will be a movement to strip the Supreme Court of its power. Such a movement has already begun with the progressive support for Court Packing, and it is on a collision course with the Federalist Society.

I predict the present legitimacy crisis will come to a head in the next few years. However, I do not know the outcome. One development that could make the next Supreme Court legitimacy crisis super messy is cultural conservatives finding common cause with economic progressives. For instance, a Trump 2.0 who opposes gay marriage but promotes basic income and wealth taxes.

My guess is that one side, probably conservatives, will back down. However, if the Conservatives in the court stand firm, they could spark a conflict that destroys the American justice system. I don’t know what happens after that, but it sounds scary.

Every American needs to fear a Supreme Court Legitimacy Crisis. Such a Crisis could destroy the courts, the constitution, our legal system, and possibly our freedoms.

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